“There will be sweeping demographic changes”

J&K’s six time finance minister, Abdul Rahim Rather, the NC leader who has worked as a member for the state autonomy committee and was chairman of the Empowered Committee of the State Finance Ministers of India on GST talks about the costs and consequences if Article 35A is tinkered with

NC politician, Ab Rahim Rather.

KASHMIR LIFE (KL): Article 35A of the Constitution of India, unknown to the public domain till recent times, has raked up an intense debate. What its abrogation would mean to J&K?

ABDUL RAHIM RATHER (ARR): There is a deep rooted conspiracy to see Article 35A out of the Constitution. Challenging its legitimacy after 63 years of its existence is intriguing. The overwhelming majority of the state is genuinely agitated over the issue.

Article 35A empowers the State Legislature to define the permanent residence of the state and confer on such permanent residents any special rights and privileges or impose upon other persons any restrictions in matters related to employment under the state government; acquisition of the immovable property in the state; settlement in the state; or right to scholarships or such other forms of aid, as the state government may provide.

Once Article 35A is scrapped, the intention is to bring the people of the entire country at par with the residents of the state in respect of government jobs, acquisition of immovable property, settlement in the state and right to scholarships, which the government may provide.

If they succeed in doing so, it will lead to dangerous consequences and nobody will be able to contain the situation thus created. There will be sweeping demographic changes. A situation may also arise where the Constitution of Jammu and Kashmir would come into direct conflict with the Constitution of India.

KL: You are a political veteran. You have remained part of the state autonomy committee. You understand the costs well. Please explain how Article 35A became part of the Indian Constitution.

ARR: Article 35A did not appear all of a sudden in the Constitution of India. It is the culmination of a long struggle made by the people of the state. It was under strong public pressure that Maharaja Hari Singh promulgated the notifications on 20th April 1927 and 27th June 1932, defining the state subjects and their special rights and privileges. Even before that, during Maharaja Pratap Singh’s rule the mortgages in favour of non-residents were restricted.

Post independence, Sheikh Mohammed Abdullah and his colleagues made untiring efforts to ensure that it is constitutionally protected. In the State Constituent Assembly, a committee on Fundamental Rights and Citizenship was constituted on 7th November 1951. The Committee also made recommendations in this regard. During Delhi talks, Sheikh Sahib made it a point to make Government of India agree to have a provision in the Constitution of India for the protection of State Subject Law. It was accordingly incorporated in Delhi Agreement 1952. This agreement was not only approved by Lok Sabha on 24th July 1952 and Rajya Sabha on 5th August 1952 but also by the State Constituent Assembly on 11th August 1952.

Given this background, the Article 35A was incorporated in the Constitution of India in May 1954.

KL: NC, oldest party of the state, being in power for most of the time is accused of eroding the special status of the state. How far is it correct?

ARR: This accusation is totally wrong and baseless. It is because of the untiring efforts of Sheikh Sahib and his colleagues that Article 370 was incorporated in the Constitution of India. Long negotiations for the same were held between the state leaders, led by Sheikh Sahib, and central leaders, led by Prime Minister Pandit Jawaharlal Nehru from middle of May 1949 to middle of October 1949. It will, therefore, be appropriate to say that National Conference is the architect of Article 370. This special position was intact till Sheikh Sahib was unconstitutionally and illegally dismissed 1n 1953 and simultaneously imprisoned. A phase of unconstitutionality began in the state thereafter. Autonomy secured after putting in hard labour and sustained efforts were mutilated beyond recognition. The immenseness and pace of erosion of autonomy from 1953 onwards can be gauged from the perusal of the long list of the presidential orders, applying various provisions of the Constitution of India to the state.

This unfortunate phase of unconstitutionality ended after 1977 when J&K National Conference was elected back to the Legislative Assembly except, of course, when some presidential orders were issued in 1985 and 1986 when the National Conference was out of power.

KL: As of now what has remained of Article 370?

ARR: As I have already mentioned that from 1953 onwards, especially in sixties, the process of erosion of the state autonomy was so rapid and on such a massive scale that entire Article 370 of the Constitution of India, which was supposed to guarantee and preserve the special status of the state in the Indian Union was emptied of its substantive content with the result that the state’s jurisdiction over the matters, as envisaged by the Instrument of Accession of 1947 and Delhi Agreement of 1952 was gradually diminished and systematically transferred to the Union. All this has been done by the Centre without any powers to do so. That is why J&K National Conference has been asking for restoration of autonomy to its pristine form.

KL: If J&K loses its special status, what would be its effect on the relationship between J&K and Delhi?

ARR: The basis of relationship between the state of Jammu and Kashmir and the Union of India is the Instrument of Accession. A plain reading of this document would show that the accession of the state with the Union of India is limited to three subjects only—Defence, Foreign Affairs and Communications. It was fully elaborated in the Constitution (Application to J&K) Order, 1950.

Article 370, which grants special status to J&K, is based on the Instrument of Accession. So the principal matters in respect of which the Dominion Legislature could make laws for our state were Defence, Foreign Affairs and Communications. This arrangement involved a division of sovereignty, which is a normal feature of a Federation. Beyond the powers transferred by it to the Dominion, the state enjoyed complete residuary sovereignty. Once these fundamental terms are removed, the relationship will come under severe strain. That is why, Sheikh Sabhib, while speaking in the State Constituent Assembly on 11th August 1952, warned; “I would like to make it clear that any suggestions of altering of this basis of relationship with India would not only constitute breach of the spirit and letter of the constitution, but it may invite serious consequences for a harmonious association of our state with India”.

KL: State is fighting its own battle, left alone by Government of India. How strong is J&K’s defence in the Supreme Court?

ARR: Even the state government is divided on the issue. The spokesperson of the BJP, a coalition partner in the state government, has unambiguously said that time has come to say good-bye to Article 370 and Article 35A. The Government of India is a mute spectator. They have not filed a counter affidavit in the Supreme Court. Article 35A had been challenged in the past also. Those petitions were dismissed because the then central government took a definite stand and defended the Article vigorously. However, unlike in the past, the Government of India refuses to take a definite and clear position on the Article this time around, thus making it a wide open case.

The petitioner NGO enjoys proximity with the RSS—the ideological fountain-head of the ruling BJP, which wants to resolve the Kashmir issue through the sweeping demographic changes. But the only hiccup to achieve that design is Article 35A, which bars settlement of non-state subjects in the state. So far, the Union Government has decided not to file counter affidavit in the matter. By abstaining from filing a counter affidavit, Delhi has apparently toed the line of the petitioner. The Chief Minister has met the Prime Minister the other day. We don’t know what transpired between the two leaders. She should have impressed upon the Centre to fight the case in the Supreme Court against the petitioning NGO. The statement of the Chief Minister that the Prime Minister was positive is not sufficient to eschew the apprehensions of the people of Jammu and Kashmir. There is general feeling that PDP slept over the matter too long and its response to the matter is also lukewarm. After actively collaborating with the Centre on GST, the PDP seems to have ganged up with the powers that be yet again to facilitate an assault on Article 35A.

KL: If at all J&K loses the case, how the united opposition which NC is a part, will manage to safeguard the interests of the state subjects?

ARR: In that eventuality it is the state government which shall have to face the disastrous consequences because primarily it is the government that is responsible for safeguarding the interests of its subjects. The opposition will definitely do whatever is possible to save the situation that may arise due to gross negligence of the ruling party.

KL: Kashmir apart, what would it mean to Jammu and Ladakh?

ARR: Jammu will be worst hit. The circumstances under which the Maharaja was forced to issue state subject notifications are relevant even today. Most of the settlements likely to be made after scrapping of Article 35A, I am afraid, will be in Jammu. All the three regions of Jammu, Kashmir and Ladakh shall equally suffer for want of government employment, admission to various professional courses, scholarships etc, as there will be unprecedented competition in these areas.

KL: You had been the Chairman of the Empowered Committee of the State Finance Ministers on GST and were special invitee on the launch. But you said GST was a sell out as it diluted left over autonomy further. You still hold that view?

ARR: Yes, I still hold the view that GST in the present form would be disastrous for the fiscal autonomy of the state. I had been a member of the Empowered Committee of the State Finance Ministers of India for a pretty long time. I was elected its Chairman in 2013. While I played the role in evolving a consensus among other states of the country in respect of new tax regime, my views about the Jammu and Kashmir state in this regard were distinctly different, firm and consistent. I repeatedly told the Empowered Committee and Union Finance Ministers, from time to time, that J&K was a separate case. It had to be dealt with carefully and cautiously so that special position enjoyed by it under the Constitution was not diluted. I had suggested an alternate GST model for Jammu and Kashmir for which a blue-print was prepared in 2011. It was to be a state legislation. A legal opinion was sought from a Supreme Court lawyer, who is considered to be a taxation expert. He opined positively in favour of the proposal. The matter was also considered back home by a committee, consisting of legal and taxation experts, which fully endorsed this idea. Thereafter, the matter was discussed in the State Cabinet and vide its Decision No 137/21/212, dated 1st August 2012, it approved the alternate GSP proposal. The Empowered Committee of State Finance Ministers was informed accordingly. The matter came up for discussion in the said committee on 28th and 29th January, 2013 at Bhubaneswar (Orissa) and on 18th and 19th November 2013 at Shillong (Meghalaya). The proposal was unanimously agreed by the Empowered Committee. Such a mechanism would be in conformity with the special constitutional position enjoyed by the state and also ensure participation of the state in the GST regime.

The present state government, however, finally decided to apply GST here in the same manner in which it was done in other states.

KL: Why are certain think tanks in India using the judiciary to alter things, which are constitutionally guaranteed? Is it because they cannot alter it through Lok Sabha or assembly?

ARR: BJP has always been against the special status enjoyed by our state under the Constitution of India. But they cannot tinker with it politically. It is not also possible to alter it through Lok Sabha or the Assembly either. Article 370 is not amendable. It cannot be abrogated. It could be done only on the recommendations of the State Constituent Assembly, which has ceased to exist. So, they have resorted to the judicial process to achieve this goal. The present petition appears to be a sponsored litigation.

KL: For the last many years the focus of judicial activism is the state subject laws. Why have successive governments failed in strengthened this law further? Last time it was another judicial intervention that gave non-local sons-in-law a right to J&K citizenship?

ARR: The relevant law has no loopholes as far as I have understood it. But, unfortunately, in the case you are probably referring to, the government of the day bungled in 2004. The case was closed due to government apathy. The then coalition government perhaps thought it expedient to withdraw the appeal from the Supreme Court against the judgment of the State High Court. A Bill was introduced in the Legislative Assembly to undo the damage caused due to the judgment of the J&K High Court. The Legislative Assembly passed the Bill. You may recollect the role of the then ruling party in the Legislative Council. It will require pages together to reproduce that painful story.

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